Chance v SA Metropolitan Fire Service
[2006] SADC 59
•24 May 2006
DISTRICT COURT OF SOUTH AUSTRALIA
(District Court Administrative and Disciplinary Division)
In the Matter of SA METROPOLITAN FIRE SERVICE ACT 1936; FIRE AND EMERGENCY SERVICES ACT 2005
CHANCE & ORS v SA METROPOLITAN FIRE SERVICE
[2006] SADC 59
Judgment of His Honour Judge Clayton, Assessor Schmerl and Assessor Vander-Jeugd
24 May 2006
ADMINISTRATIVE LAW
Appeals by firefighters against nomination of other firefighters to the rank of Station Officer on the ground that nominees had not satisfied prerequisites.
HELD: Corporation had waived the prerequisite when it called for nominations and by a subsequent meeting of the Promotions Committee. Also even if the three nominees had been excluded from the promotion process none of the appellants would have been appointed in their places because of their ranking in an order of merit.
South Australian Metropolitan Fire Service Act 1936 s40A; District Court Act 1991 s42E; Fire and Emergency Services Act 2005 s29, referred to.
CHANCE & ORS v SA METROPOLITAN FIRE SERVICE
[2006] SADC 59Appeals against nomination of Mr P L Kilsby, Mr G J Staple and Mr C B Medcalf to the position of Station Officer
These reasons must be read in the context of earlier reasons which have been published in connection with these appeals.
On 8 January 2004, Mr Kilsby (1826) and Mr Staple (1921) were nominated for promotion to the position of Station Officer. On 8 December 2004, Mr Medcalf (2069) was nominated for promotion to the rank of Station Officer Level 1. Mr M A Chance, Mr S J Wuttke, Mr G J Redding and Mr R J Collins have appealed against those nominations.
When the appeals were instituted the right of appeal was created by section 40A(3) of the South Australian Metropolitan Fire Services Act 1936. The topic is now dealt with by section 29(2)(c) of the Fire and Emergency Service Act 2005. Firefighters have the right to appeal against particular nominations for promotion.
An appeal must be considered in light of the circumstances existing at the time the nomination was made. Subsequent events are irrelevant to the merits of the appeal. The court has no power to deal with perceived injustices which may have occurred subsequent to a nomination which is the subject of an appeal. The court has no role to play as the ongoing supervisor of promotions within the Fire Service. The role of the court is confined to a consideration of the particular appeals which are lodged with respect to particular nominations.
At the present moment the court is required to consider two separate appeals lodged on behalf of each of the four appellants. The four Notices of Appeal lodged in January 2004 are expressed to be appeals against all of the persons listed in an order of merit arrived at during the 2003 Station Officer Promotion Process. The appellants have named all successful and unsuccessful applicants for promotion including themselves. No point has been taken by the Corporation as to the regularity of the Notices of Appeal. Those Notices of Appeal can only apply to the nominations of thirty-eight firefighters who were nominated on 8 January 2004. They were the only nominations that had been made at the time the Notices of Appeal were lodged. Included in the list of thirty-eight nominations was Mr Kilsby who was number 28 on the order of merit and Mr Staple who was number 38 on the order of merit.
Although Mr Medcalf was named in the schedule annexed to the first Notices of Appeal he had not been nominated for promotion at the time the first Notices of Appeal were lodged. The appeals commenced in January 2004 do not raise a competent appeal against his nomination.
After the first thirty-eight nominations were made further firefighters were nominated for promotion during 2004, but no appeal was lodged against the further nominations. Presumably that was an oversight on the part of the appellants.
The second group of Notices of Appeal, which were lodged in December 2004, appealed against the nomination for promotion on 8 December 2004 of numbers 48 to 60 on the order of merit. Mr Medcalf is named in that list.
The four appeals were argued by the appellants on Tuesday, 23 May 2006. The Corporation was represented by Mr R L Sedunary. Mr A Durkin of counsel represented the nominees who were subject to the appeals, but he did not participate in the proceedings. At the outset the court indicated that the nominees whom were appealed against would not be required to respond unless the appellants made out a case to answer.
The four appellants advanced identical arguments. It was that a prerequisite to the eligibility for promotion was the successful completion of certain components of a TAFE course. The argument was based upon a memorandum (5/2003) published by the South Australian Metropolitan Fire Service on 26 February 2003. The memorandum stated:
2003 Station Officer Promotions
The SAMFS has determined that the 2003 Station Officer Promotion Process will commence in the middle of 2003, subject to an agreed review of the current promotion process.
The Senior Firefighter Transitional Staff Development Framework Program 2002/2003 identified that the following six components form the Senior Firefighter Development Program, which is a prerequisite to contest the Station Officer Promotion Process:
(1) Cert IV Plan BSZ401 Torrens Valley TAFE (2) Cert IV Conduct Assessment BSZ402 Torrens Valley TAFE (3) Cert IV Review Assessment BSZ403 Torrens Valley TAFE (4) Cert IV Train Small Groups BSZ404 Torrens Valley TAFE (5) Identify, Analyse and Evaluate Risk EMR 002A Torrens Valley TAFE and
(6)professional Development Program facilitated by the SAMFS Training Department based on:
· Manage a Multi-Team Response
· Develop Incident Control Strategies
· Identified SAMFS requirements in the areas of Operations and Operational Risk Management.
Successful completion of these components will ensure that Senior Firefighters acquire the necessary competencies for eligibility to apply for a merit based Station Officer promotion process.
The memorandum also stated:
Note:For Senior Firefighter contesting promotion, the final date for completing the Train Small Groups Unit and submitting all outstanding assignments to Torrens Valley TAFE for the Assessor Units and the Identify, Analyse and Evaluate Risk Unit is Thursday 17 April 2003.
In relation to submission of assignments and to meet the above completion date, personnel are reminded to take into consideration turn around and assignment resubmit timeframes.
Another document relied upon by the appellants is an “Information Screed for Candidates”. That is an undated six-page document which stated under the heading “Eligibility Criteria” that “candidates must meet the following criteria to be eligible to apply for the 2003 Station Officer Promotion Selection Process”. The criteria were set out. One of the notes in the Information Screed advised that a candidate could not submit an application if he had not completed all of the eligibility criteria. The document also stated that:
Prospective candidates must have completed the Train Small Groups Unit by Thursday 17th April 2003 and must have submitted their final assignments for the Plan, Conduct and Review Assessment Units and the Identify, Analyse and Evaluate Risk Unit by Thursday 17th April 2003.
The appellants argued that the three nominees who are the subject of the appeals had not satisfied these prerequisites.
We are satisfied that Mr Kilsby did not satisfy the requirements until 3 May 2003, Mr Staple did not pass the TAFE examination until 26 June 2003 and Mr Medcalf did not pass the requirements until 25 April 2003.
The Corporation argued that the memorandum of 26 February 2003 (5/2003) and the Information Screed were inconsequential documents and that the important document was the “call” for nominations. The “call” is a document dated 30 June 2003 which invited applications from senior firefighters to participate in the Station Officer Level 1 promotion process. That document did not refer in terms to the prerequisites.
The appeals raise the enforceability of the statements made in preliminary material published by the Corporation.
We accept that the evidence established that the three nominees had not satisfied the requirements set out in memorandum 5/2003 by 17 April 2003. The central issue in these appeals is whether the non-satisfaction of those requirements is a reason for revoking their nominations and appointing the three appellants in their place.
In the case of two of the three nominees the requirements were all satisfied by no later than 2 May 2003. In the case of Mr Staple the position with respect to the module Risk Assessment is unclear, but there is no evidence that he had not passed that unit when his application was lodged. The onus rests with the appellants.
There is no evidence that any nominee had not passed the prerequisites at the time that the applications for the promotion were lodged prior to 11 August 2003 or the time when they were nominated for promotion.
The question of the prerequisites for promotion was raised at a meeting of the Promotions Committee on Friday, 24 October 2003. Item 4.4 of the Minutes of that meeting records:
Prerequisites
Commander Keen stated that there was some concern in regard to the prerequisites required to contest the Promotion Process and the closing date of 17 April 2003 for candidates to submit assignments to TAFE. Candidates were required to have had the prerequisites (as stated in the PID and Memorandum) before they applied to contest the Promotion Process.
Resolved:Training Department to provide the correspondence forwarded to candidates on this matter for the next meeting.
The question arose again at the next meeting of the Promotion Committee held on Thursday, 30 October 2003. The Minutes record:
4. STATION OFFICER PROMOTION PROCESS
4.1 Pre-Requisites
District Officer McIntosh tabled the following documentation relating to the prerequisites required to contest the Station Officer Promotion Process:
·Memorandum No. 5/2003.
·Memorandum No. 18/2003.
·List of SFF who have completed all TAFE studies but have withdrawn from the Professional Development Course and are ineligible due to years of service or late submissions of TAFE unit assignments.
·List of SFF who did not complete TAFE studies by 17 April 2003.
·List of SFF who voluntarily withdraw from the SFF Year 2 Development Program.
·List of SFF eligible for the 2003 Station Officer Promotion Process.
The above documents have been accepted by the Committee.
Discussion took place in regard to the final date for completing prerequisites, submission of prerequisites by the 17 April 2003 and the turn-around time for TAFE facilitators to return submissions. It is noted that all units and assignments are facilitated by TAFE and not the Training Department.
Resolved(a) the Promotions Committee interpretation is that all prerequisites had to be submitted by the 17 April 2003, however, subsequent follow up on the submissions were accepted.
Reference:
“Memorandum No. 5/2003, page 2, Note - For Senior Firefighters contesting promotion, the final date for completing the Train Small Groups Unit and submitting all outstanding assignments to Torrens Valley TAFE for the Assessor Units and the Identify, Analyse and Evaluate Risk Unit is Thursday 17 April 2003.”
(b)In future processes, clarification of submission date to be placed in the Framework.
We note that the Committee interpreted the documents to mean that all prerequisites had to be submitted by 17 April 2003, but “subsequent follow up on the submissions were accepted”. That is, the Committee decided to excuse non-compliance with the submission of material by 17 April 2003. It is that decision which gives rise to these appeals.
We find that by the resolution passed on 30 October 2003 and by accepting the applications by the nominees who are the subject of the appeals the Promotions Committee had waived the requirement that the prerequisites had to be submitted by 17 April 2003. Also the “call” for nominations of 30 June 2003 had introduced its own prerequisites.
Section 42E(3) of the District Court Act 1991 directs that on an appeal such as this the court cannot depart from the decision of the original decision maker except for cogent reasons.
The underlying basis of the four appeals is that the nominees for promotion had not complied by 17 April 2003 with the requirements in memorandum 5/2003 or the Information Screed for candidates. There is no evidence that they had not complied with those requirements when they lodged their applications for promotion.
The important consideration was that the applicants for promotion had to satisfy the prerequisites required by the Corporation at the time the nominations were to be lodged. There is no evidence that the nominees who are subject to these appeals had not complied with any prerequisite when they lodged their applications for promotion.
We find that compliance with memorandum 5/2003 was not a binding prerequisite for applications lodged pursuant to the “call” dated 30 June 2003. The requirements in memorandum 5/2003 were requirements which the Corporation could vary from time to time in accordance with the circumstances. Any requirements stated in memorandum 5/2003 were not contractual terms which were capable of being enforced by candidates for promotion.
The requirements of fairness are another consideration, but in our opinion there was nothing unfair about the “call” process. Candidates were ultimately placed in the order of merit on the basis of their performance in the examinations.
We find that the non-compliance with memorandum 5/2003 by the Corporation does not provide a cogent reason to revoke the nominations. The important consideration was that the applicants had satisfied the prerequisites required by the Corporation when it made the “call” dated 30 June 2003 at the time when they lodged their application for promotion. As we have mentioned there is no evidence to suggest they had not done that.
We accept the submission of the Corporation that the statements in the memorandum (5/2003) and the Information Screed were superseded by the “call” for nominations dated 30 June 2003 (18/2003).
As we have mentioned, memorandum 5/2003 had no contractual significance or any other binding consequences. It was an information document. Subject to requirements of fairness, there is no reason why the requirements described in such a memorandum should not be varied by the Corporation from time to time.
A Position Information Document dated 30 June 2003 which was referred to by Mr Redding, lists as an educational/vocational qualification “successful completion of the specified TAFE units”. It does not take the matter any further.
In our opinion an extension of the time within which to satisfy the prerequisites was unnecessary, but, if an extension was required, the grant of the extension by the Promotions Committee on 30 October 2003 did not give rise to any unfairness to the applicants. The cut off date for the purpose of memorandum 5/2003 was 17 April 2003. The applications for promotion were not called for until 30 June 2003 and did not have to be lodged until almost six weeks later on 11 August 2003. There was no reason why the requirements in memorandum 5/2003 or the Information Screed that material had to be lodged by 17 April 2003 were sacrosanct. As we have mentioned, the Promotions Committee resolved on 30 October 2003 to accept the late satisfaction of the prerequisites. There is no reason why they could not do that. Apart from increasing the size of the field of persons eligible for promotion that decision did not prejudice the appellants. The decision as to who should be nominated for promotion was ultimately made on merit. None of the appellants was ultimately prejudiced by increasing the size of the field by a further three applicants.
If contrary to the findings which we have made the nominations of Mr Kilsby and Mr Staple on 8 January 2004 should be revoked because they did not hold a prerequisite qualification and they should not have been permitted to participate in the promotion process, none of the four appellants whom were ranked at various positions below number 70 on the order of merit would in 2004 have been elevated into the first thirty-eight in the order of merit by reason of the exclusion of Mr Kilsby and Mr Staple. The replacements would in January 2004 have been Mr Booth (number 39) and Mr Howard (number 40).
Similarly, if the nomination of Mr Medcalf on 8 December 2004 had been rejected for the same reason, none of the four appellants would have risen in the order of merit to a position where they would have been promoted in the nominations made on 8 December 2004. Mr Chance, who was the highest ranked appellant, was number 75 in the order of merit. Mr Medcalf was number 55 on the order of merit. If the nomination of Mr Medcalf had been revoked as at December 2004 the next person in the order of merit would have been Mr Brokenshire. The exclusion of Mr Medcalf would not have assisted any of the appellants.
After the hearing of these proceedings commenced the Corporation nominated a further group for promotion in late 2005. Those nominations occurred well after the second batch of Notices of Appeal had been lodged in December 2004. The reasons underlying those nominations are not matters which the appellants can raise on the present appeals. If the appellants wish to argue that they should have been promoted in late 2005 the present appeals are not an appropriate vehicle for doing that.
So far as the Notices of Appeal which were lodged in January 2004 are concerned, the present appellants were so far removed from position 38 on the order of merit that it was unrealistic to expect that in December 2003 they were deprived of promotion because two persons (Kilsby and Staple) had not satisfied prerequisites for promotion. So far as the second group of appeals is concerned Mr Medcalf was number 55 on the order of merit. It is also unrealistic to expect that any of the four appellants, whom as we have mentioned were ranked between numbers 75 and 94, would have benefited if his application had been refused because he had not satisfied the prerequisites.
In simple terms, if each of the three nominees whom are appealed against had been excluded from the promotion process by reason of their failure to satisfy the prerequisites, none of the four appellants would in 2004 have been nominated for promotion, because an elevation of each of the four appellants up the order of merit by three places would not have resulted in their nomination in either the first thirty-eight nominations in January 2004 or the latter nominations in December 2004.
An incidental consideration is that there are four appellants competing for three positions. One of the appeals was doomed to failure in any event.
For these reasons the appeals against P L Kilsby (1826), G J Staple (1921) and C B Medcalf (2069) are dismissed.
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